Thursday, April 04, 2013

Claims over allegedly inhumanely raised chickens survive

Hemy v. Perdue Farms, Inc., No. 11-888 (D.N.J. Mar. 31,
2013)

Discussion
of previous opinion. Hemy brought a proposed class action alleging that
Purdue’s Harvestland brand misled consumers by using the terms “humanely
raised” and “USDA Process Verified.”She
alleged that she wouldn’t have bought the premium-priced chicken had she known
that the chicken wasn’t in fact treated humanely or differently from other chickens
on the market.Hemy alleged that the
National Chicken Council’s (“NCC”) Animal Welfare Guidelines and Audit
Checklist for Broilers form the basis for Perdue’s “humanely raised” claim, but
that the NCC guidelines were nothing more than the industry standard, which is
inhumane and has huge loopholes.Harvestland chickens are allegedly “shackled by their legs, upside-down,
while fully conscious; electrically shocked before being effectively rendered
unconscious; cut ineffectively or partially while fully conscious;
drowned/scalded while conscious; stored in trucks for hours under excessive
temperatures; subject to lighting conditions which result in eye disorders;
injured in the process of being removed from their shells; subject to health
problems and deformities due to selective breeding; and provided no veterinary
care.”Hemy alleged the existence of
statements from Perdue indicating that the NCC guidelines were the basis for
its own program.Further, Hemy alleged,
the guidelines are followed by almost every other mass chicken producer;
sanction cruel practices; and were nonetheless violated by Purdue.

Hemy allegedly believed that “humanely raised” meant
“treated humanely throughout life, including quick and painless death,” and
also alleged that an online consumer survey of 209 people showed that this belief
was reasonable.(As I suggested before, it
seems the worst kind of sophistry to say that “humanely raised” has an implied
asterisk reading “but we reserve the right to horrible, painful slaughter!” when the animals are being raised for human consumption rather than, say, sale as pets.)

Hemy further alleged that she interpreted the USDA Process
Verified label, in conjunction with “humanely raised,” to mean that Harvestland
chickens were approved/endorsed by the USDA as humanely raised. However, the
processes to be verified are allegedly defined by the company itself, making
the “USDA Process Verified” claims misleading.

Applying Rule 9(b), the court allowed some of the claims to
proceed.For purposes of a motion to
dismiss, plaintiffs successfully pled that Purdue’s guidelines were only the
industry standard, and that the chickens were treated in the ways described in
the complaint.Though the court had
before it only a limited factual basis to conclude that Harvestland chickens
were treated in the same ways as Purdue chickens generally, plaintiffs couldn’t
be expected to plead facts solely within Purdue’s knowledge.

The prior opinion found that plaintiffs failed to plead that
“humanely raised” applied to slaughter. Purdue argued that plaintiffs still
failed to allege facts showing that consumers understood “raised” to be more
expansive than dictionary definitions.Plaintiffs rejoined that reasonable consumers would expect that humanely
raised chickens “would not be shackled upside-down, electronically shocked, or
bled to death while fully conscious and in intense prolonged pain[.]”The definitions of “raising” and “slaughter”
were contested, and it was plausible for a reasonable consumer to construe
“humanely raised” “as speaking to Perdue’s processes up until the time of
death, including slaughter,” especially given the internet survey.

As for the USDA Process Verified label, plaintiffs argued
that its proximity to “humanely raised” was key, relying on the internet survey
allegedly indicating that “58% of consumers believe that the USDA Process
Verified shield meant that the company meets the standards for the treatment of
chickens developed by the USDA itself.” This was enough to plead plausibly that the
combination of terms caused reasonable consumers to believe that the
Harvestland chickens were approved and endorsed by the USDA.

Thus, plaintiffs’ New Jersey Consumer Fraud Act claims
survived, as did claims for fraud in the inducement, negligent
misrepresentation, and breach of express warranty, all only as to Harvestland
chicken.

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